Man convicted of killing boy may be set free because prosecutors racially profiled the jury pool

By Nick Watt, CNN

Oakland, California (CNN) — Lance Clark was 9 years old when he was shot dead in a robbery. A man named Ernest Dykes was convicted of the 1993 Oakland murder and sentenced to death. But the boy’s family says prosecutors just told them Dykes could be released from prison in nine months to a year.

“Lance was a happy, funny, loving, sweet little boy,” his sisters told CNN in a family statement. “He was robbed of a future.”

Dykes might be released because, while preparing for his appeal, an Alameda County deputy district attorney found in the dusty case files some handwritten notes about potential jurors from the trial back in the 1990s.

One potential juror in the Dykes case file is described as a “Short, fat troll.” Like other Black potential jurors – and only Black potential jurors – her race is noted. The letters “FB” are written next to her name, apparently noting her gender and race. “Must go,” is written next to the name of a Black man, who is described as “MB.” Another juror has the word “Jewish” underlined on their questionnaire. Farther down, a handwritten note reads: “I liked him better than any other Jew. But no way.”

There were no Black or Jewish jurors seated at the trial.

“When you have serious prosecutorial misconduct, that means that the conviction is a wrongful conviction,” said current Alameda County District Attorney Pamela Price. “And so, it’s a question of whether or not we’re able to negotiate a resolution, or whether we have to go back to trial.”

Brian Pomerantz, current counsel for Dykes, could only speculate about what prejudices prosecutors could have had about certain groups. “Black people don’t like police. So, they’re more defense-oriented,” he said when asked why prosecutors might have tried to keep Black people off juries in death penalty cases. “Obviously, I think that’s a generalization that shouldn’t be made,” he added.

“I’ve heard a couple of different things,” said Pomerantz when asked why prosecutors might not have wanted Jewish jurors seated. “There’s a thought that perhaps Jewish jurors would not want to send someone to a gas chamber,” he said, recalling the genocide of Jews in the Holocaust. “The other was, they just thought Jewish jurors were more liberal.”

‘Pattern of serious misconduct’

Federal Judge Vince Chhabria, who was alerted to the prosecutors’ notes after being assigned the appeal by Dykes last year, believes they are evidence of a much wider issue.

“In prior decades, prosecutors from this office were engaged in a pattern of serious misconduct – automatically excluding Jewish and African American jurors from death penalty cases,” he wrote in a court order.

He has ordered the DA’s office to review 35 cases dating from the mid-1980s through 2007. Among those cases are convicted mass shooters, serial killers, rapists and murderers. Pomerantz has begun looking through those files as he works on his cases for Dykes and other clients.

“In almost all the cases we’ve seen lists like this,” he said, pointing to the letters ‘MB’ and ‘FB’ next to the names of potential jurors in a number of different cases, involving defendants of different races. A misspelled homophobic slur is used to describe another person in the jury pool. Pomerantz showed documents he says prove that jurors were being racially profiled and struck as late as 2008. Prosecutors, by law, cannot exclude jurors because of race, ethnicity, gender or sexuality.

District Attorney Price, who took office last year, would not comment on the claim of Dykes’ impending release. Earlier, she told CNN: “Mr. Dykes has spent 31 years behind bars and so he has paid a price for that crime.”

Pomerantz believes that some of those sentenced to death might now be freed. “For some, that may be the solution,” he said. ”And for some that should be the solution.”

Like Mark Schmeck, a client who Pomerantz believes is innocent but was sentenced to death for the killing of Lorin Germaine during an armed robbery in the mid-1980s.

“He was a fun dad,” Germaine’s daughter, who asked to remain anonymous for her safety, told CNN. “He would always take us fishing and camping… mom worked swing shift, so he was the guy home at night… he, he even was the tooth fairy. I caught him. Once.”

Schmeck claims he is innocent in Germaine’s death and Pomerantz is petitioning for his release, claiming he did not get a fair trial. And that terrifies Germaine’s daughter. “I don’t know why,” she said. “Just that somebody out there like hurt my dad and then he’s gonna be out there and who’s to say he’s not gonna hurt me.”

‘There had to be knowledge’

Price and Pomerantz believe there has been a decades-long cover-up of jury tampering within the Alameda County DA’s office. “There does not appear to have been any accountability, or certainly no investigation to determine how widespread the practice was.” Price said. “There had to be knowledge.”

In 2003, during an appeal of a death penalty conviction, John Quatman, a former deputy DA, testified that a judge “said I could not have a Jew on the jury.” He went on, “It was standard practice to exclude Jewish jurors in death cases: as it was to exclude African-American women from capital juries.”

“It is ironic they didn’t want me on the jury,” said Price, who is Black. “And now I’m the district attorney.”

A number of prosecutors who worked in the office testified in 2003 that Quatman’s claims were untrue, and some have told CNN that potential jurors were never racially profiled.

According to Price, one of the prosecuting attorneys involved in jury selection on the Dykes case was Morris Jacobson, who now serves as a judge in Alameda County. Asked if it is Jacobson’s handwriting on those jury notes Price said, “We don’t know that for sure.” It is also not known if it was definitely a prosecutor who wrote the notes.

Judge Jacobson declined CNN’s request for an interview. A CNN crew waited outside his courthouse in Berkeley one day hoping to ask him some questions. Jacobson, a source said, knew they were outside but did not come out for at least two hours after his hearings had ended for the day. Colton Carmine was the chief prosecutor on the Dykes case. He is now retired and could not be reached for comment.

A problem in America, not just Alameda

“This is one of the most liberal counties in America. This is where Berkeley is. If this is happening there, what’s happening everywhere else?” said Pomerantz.

Studies have found patterns of racial bias in jury selection from California and Washington to Connecticut and New York as well as the Deep South.

One of the Alameda County cases that Pomerantz has reviewed is that of Franklin Lynch, known as “The Day Stalker.” He was convicted of killing three elderly women in 1987 and sentenced to death.

“You see the B circled,” said Pomerantz pointing to notes on potential jurors at Lynch’s trial. He also pointed to ‘1/2 B’ written twice on one person’s form. “They were so concerned about that person even being half Black,” he said, “that they flagged it not once… but twice.”

“This is a tragedy on all levels,” Pomerantz said. “There are victims, families who are suffering because now these cases 30 years later are, are coming back through this situation. That’s incredibly unfair. It is wrong that these prosecutors did this this way and that now people are going to suffer for it… It’s also wrong when Franklin Lynch doesn’t get a fair trial.”

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CNN’s Stephanie Becker contributed to this story.